ATLANTA - A federal appeals court ruled Tuesday that a Ten Commandments monument the size of a washing machine must be removed from the Alabama Supreme Court building.

The 11th U.S. Circuit Court of Appeals unanimously affirmed a ruling by a federal judge who said that the 2 1/2-ton granite monument, placed there by Alabama Chief Justice Roy Moore, violates the constitutional separation of church and state.

[snip]

Moore put the monument in the rotunda of the courthouse in the middle of the night two summers ago. The monument features tablets bearing the Ten Commandments and historical quotations about the place of God in law.

I cannot believe the depth and breadth of stupidity and ignorance on the history of this particular issue. It is absolutely mind-boggling.

James Madison, principal drafter of the First Amendment, thought that it prohibited Congress from hiring chaplains, and the President from proclaiming Thanksgiving Day. His thoughts on the subject are here.

Granted that's probably not exactly what the Supreme Court has in mind, but the basic point is that context is what matters and the Supreme Court manages to put the Ten Commandments in a judicial context in a way Judge Moore doesn't--and won't--do. The use of Roman numerals in place of words is a significant detail in that distinction.

First, let's take a look at what Jefferson says to do in interpreting the Constitution. Jefferson expresses a strict constructionist attitude in this June 12, 1823 letter to Supreme Court Justice William Johnson:

"On every question of interpretation, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

In other words, do not do like these judges do and ignore the history of the Constitution and amendments. Instead, examine the history and the feelings at the time of their adoption.

That is what this post is going to do.

An obvious requirement for determining original intent is a study of the original debates on the Bill of Rights. During the debates on the Constitution, religion was a subject that did not come up much, except when the framers discussed Article IV, clause 3, which prohibits religious tests for public office. Religious freedom came up so little that it seems perhaps the delegates to the Constitutional Convention saw the prohibition on religious tests as an adequate restriction on the federal government in regards to religion. At the very least, this belief in the adequacy of the Constitution is the attitude expressed by the Federalist Papers. Alexander Hamilton says, For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed (Federalist 84)? Edmund Randolph had this to say: No part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion" (qtd. in Stokes & Pfeffer 151). This Federalist attitude was one that was pretty common. In fact, James Madison, father of the Bill of Rights, did not consider any amendments necessary, but proposed them to secure votes from anti-Federalists for the Constitution. Anti-Federalists were concerned about the rights of states under a Constitution; they feared their rights would be hurt by a strong national government. Therefore, the states ended up leading the charge for the Bill of Rights. Massachusetts, New Hampshire, North Carolina, New York, Rhode Island, and Virginia all submitted suggested amendments securing personal liberties and the only state that did not address religion was Massachusetts. In any event, eventually, James Madison proposed his Bill of Rights to pacify the Anti-Federalists (Davis 441).

The history of the First Amendments adoption provides important insight into its intent. James Madison introduced the First Amendment in the House of Representatives June 8, 1789, with the original text reading: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed (Annals of Congress). By August 15, it read: No religion shall be established by law, nor shall the equal rights of conscience be infringed. Importantly, in the debate that day, Roger Sherman is recorded in the Annals as thinking, since Congress had no power to establish religious establishments, an amendment to forbid it was unnecessary. Such was the belief of both Madison and Jefferson. In a significant announcement, Madison explained the intent of his amendment recorded in the Annals for August 15, as it is recorded that He apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Nothing in this explanation supports a contention that the federal government could not ever pass an act supporting religion in general, even perhaps generally the Christian religion. Madison (who in some cases seems to broadly interpret establish) very narrowly construes the meaning of establish in the amendment.

Of course, this amendment went through further changes. An example is the final draft of the House version in the Annals for August 20, 1789: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed." A person attempted to alter the amendment in the Senate to stop any state from doing such, not just Congress. However, the motion failed. The final version in the Senate (from the Annals of Congress for September 9) read as follows: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion. It should be noted that the Senate beat back attempts to alter the language to prohibit the establishment of a particular denomination (Annals, September 3). One major First Amendment authority believes that rejecting the wording of "denomination" shows that the narrow constructionist view of the establishment clause was rejected (Stokes & Pfeffer 98). However, in the very final Senate version quoted above, the legislators did narrowly construct the amendment contrary to Stokes' claim. Congress is only forbidden from establishing articles of faith and manner of worship, not a broad restriction in any sense of the word. Furthermore, a consistent wording in changes to the First Amendment as offered initially is the banning of acts establishing a religion (an example is the House version), putting in doubt the statement of one author that any law even touching upon something of a religious nature is unconstitutional (Lowell 8).

The best test for any of these laws are the opposite foot. If the judge was a scientologist, a mormon, a Hindu, a jehovah's witness... would you feel comfortable with them giving a tacit approval of their faith, broadcasting it to potential jurors, while they are judging you?

The court building also contains plaques with quotes from Martin Luther King, Jr. So what does that bode for defendants who are on record as opposed to the fact that that Communist gets his own federal holiday?

Good idea. Mine is to put a bust of each of the 11 Circuit Judges that voted for this and their full names and then something really, really insulting. Wouldn't that be covered by the 1st Amendment. Maybe the ACLU would defend that one for us.

111
posted on 07/01/2003 4:42:21 PM PDT
by microgood
(They will all die......most of them.)

"James Madison, principal drafter of the First Amendment, thought that it prohibited Congress from hiring chaplains" Yet he did vote for hiring chaplains. Later he changed his mind and thought it wasn't a good idea.

He has a good point, but he never claims that he is the authority on the Constitution but that it was the product of many and that the final authority lies in it's ratifiers- which many (most?) of those in the congress that voted for the chaplains were.

James Madison, principal drafter of the First Amendment, thought that it prohibited Congress from hiring chaplains, and the President from proclaiming Thanksgiving Day.

There may have been sound reasons for saying that that still don't apply to the current case. Madison defined religion (correctly) as "the duty which we owe to our Creator, and the manner of discharging it" - that is, the prayers, the rituals, the hymns, etc. Certainly chaplains and thanksgiving are part of that definition. But merely making a statement regarding the source of moral law is not, in itself, religion. It's simply a view of the way the world works, without which no human institution can properly function.

The decision was correct. Not only is it based on decades of Supreme Court decisions, but the decision was based on impartiality toward the establishment of religion by governmental authorities.

Anybody who has not bothered to read the actual court decision linked in this article is making a decision to deliberately remain ignorant. That is their perogative, of course, but it doesn't really contribute to informed discussions.

I can envision the year 2400 when Islam or Gaia or some other religion has gained predominance in America. This ruling would protect me and uphold the Constitution.

You make a great point. People in the majority now, don't want constitutional protections for religious minorities, because it doesn't affect them, right now, since their ox isn't being gored.

This country is becoming vastly latino, and catholic while baptists aren't noticing. They are having struggles in Poland right now regarding the rights of those who are non catholic christians because of the super majority catholic faith of people over there.

I wish people would take the long sided view. Demographics should teach people that what exists now, won't necessarily exist later. California, Texas, Arizona, Florida, and New Mexico for example will soon be overwhelmingly Catholic, not protestant. Alot of evangelicals would not want to go to court where a statue of the pope is required to be passed before they enter.

Of course you're right, but that doesn't change my point that things are likely to get ugly. Judge Moore isn't going to back down on this. It is his 10 Commandments schtick that got him elected Chief Justice to begin with. Believe it or not, that was the biggest plank in his platform when he ran for the office (welcome to Alabama). You ask me, he's going to ride it all the way to the governor's chair, and the feds are only helping him to get there by making an issue out of it.

Yes, I've read it. The court's lame attempt to distinguish this from the "In God We Trust" on our money is utterly unconvincing. They basically were trying to say that we really don't mean what we say on the money - it's just window dressing. Sounds like an atheist in denial to me.

There is no substantive difference between what appears on our coins and the Decalogue in that rotunda. They both express the exact same worldview.

It was a minister who, on the eve that battle, told the militia they had a duty to God to fight. Another minister, Muhlenberg, at the end of a sermon, tore off his clerical garb to reveal the uniform of an Officer in the Virginia Militia (his brother, also a minster, was the first Speaker of the House of Representatives).

Oh no, I don't despise it. You typically assume what you don't know. I grew up in Alabama. My family still lives there. If you knew anything about it, you would know that the state is in the midst of a fiscal free-fall. The economy will not be assisted by the election of a governor who (a) knows nothing of government except for the imposition of his own views and (b) will drive away the investment that is critical for the survival of the state's economy.

Go ahead. With your vast knowledge of the state and of Roy Moore's governmental acumen, tell us all how his election would be good for the state.

Question is, would George W. Bush call out the National Guard to force a conservative judge to remove the 10 Commandments??

If a governor ordered the National Guard to come obstruct US marshals on behalf of a freak like Roy Moore? You betcha. Several things would start happening then that would play very well in the rest of the country - and very badly for the religious right.

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